Including African-Americans in the Rebuilding of New Orleans:
Minority-Owned Businesses and Minority Employees Should Be Recruited, And Use of the Eminent Domain Power Must Be Scrutinized

By BARBARA BERNIER
Tuesday, Sep. 20, 2005

Recently, the Wall Street Journal reported that Rep. Richard Baker (R-La) was overheard telling lobbyists, "We finally cleaned up public housing in New Orleans. We couldn't do it, but God did."

Later, Baker backpedaled, saying he was misquoted. He claims what he really said, or meant, was, "We have been trying for decades to clean up New Orleans public housing to provide decent housing for residents, and now it looks like God is finally making us do it."

But Baker's revisionism is exceedingly hard to swallow. It would be far less surprising if the initial report were correct - and Baker is, in fact, among the substantial number of wealthy white New Orleans residents who have openly suggested that this tragedy presents a perfect opportunity to "rebuild" New Orleans as a richer, whiter city.

Can Black people's homes and land be taken in the service of this "rebuilding"? The worrisome answer, after the Supreme Court's recent Takings Clause decision, Kelo v.New London, is yes.

There, the Court held that a transfer of private land, to private developers, for "economic development," had a "public purpose" sufficient to satisfy the U.S. Constitution's Fifth Amendment.

Just such transfers may serve the interests of those who believe New Orleans would be better off without its poor, Black residents. And, as I will argue, just such transfers may be a large part of rebuilders' game plan.

How can that game plan be rewritten? In this column, I will suggest a number of ways.

One way is to include African-American businesses and workers - particularly those workers who were evacuated, and want to return - in the city's rebuilding. Another is for Congress to reverse the holding in Kelo, which it has the power to do.

Minority-Owned Contractors Should Be Able to Bid on Rebuilding Contracts

In all the horror of ravaged New Orleans and the Gulf Coast, there may be a silver lining after all - but only for the pockets of politically-connected large contractors like

Bechtel, Halliburton and subsidiary Brown Root, just to name a few. (The Service International Corporation, which proudly advertises itself as the "dominant leader in the North American death care industry," has also joined their ranks.) That is because these corporations, and others, have received lucrative many-million-dollar no-bid government contracts to clean and rebuild New Orleans.

Conspicuously absent, among these companies, are minority-owned contractors. The contracts should be unbundled so minority-owned contractors - who tend to be smaller than these industrial giants - can bid.

Some laws will doubtless be suspended or altered for rebuilding. But Executive Order 11246 -- which requires minority contractor's participation in bidding - should not be one of them.

Nor should the Davis-Bacon Act, which requires federal contractors to pay laborers the prevailing wage rates of similar workers in the area. But according to Beth Shulman, in Tompaine.com, it's too late: The Davis-Bacon Act has already been suspended.

The result is that the working-class New Orleans residents, of whatever race, who do return, and are lucky enough to be hired by contractors, won't receive even the modest wages they were used to. Surely, this ought to change.

Invite Minority Workers Back with the Promise of Good Jobs

It's the African-American heritage of New Orleans that is most in danger in the rebuilding effort.

Why? One reason is simple: Evacuation. Almost a million

poor, and overwhelmingly Black residents have been cast to the far reaches of America -- in the largest black migration since the 1927 Mississippi Flood. More than twenty states have taken in New Orleans residents; many will never return.

Many of these states do not exactly exemplify, or necessarily welcome, diversity. As one black man stated when he arrived in Wyoming "I feel like a fly in the buttermilk."

If Congress does not want the character of New Orleans destroyed, it must make sure that the evacuees are welcomed back - and, indeed, incentivized to return, by the offer of construction-related and other jobs.

The $60 billion dollars allotted so far for hurricane affected New Orleans and the Gulf Coast is greater than the money spent for the war efforts of Afghanistan and Iraq combined. Katrina relief expected to exceed war spending. Will that money end up helping large companies, or helping the most direct victims of the hurricane?

So far, the large companies who need the money the least, seem to be attracting it the most.

Congress should change that, and set up an incentive program for evacuees to return -- offering rebuilding and rebuilding-related jobs and offering financial support during job searches.

Taking Poor, Black Residents Homes for "Redevelopment" Is Court-Sanctioned

Suppose, with heroic effort, an evacuee does come back to his or her partially-ruined house, does find a new job - no thanks to the government - and starts, as best he or she can, to put a life back together. Even this hard-working evacuee may see the home taken literally out from under his or her feet - and legally so.

Based on the Supreme Court's ruling earlier this year in Kelo, New Orleans private homes can now be officially designated as blighted, torn down, and turned over to private developers - who seek to replace them with buildings in which the old residents cannot afford to live, or malls in which they cannot afford to shop.

As long as the private developer can promise that the development will generate more tax dollars for the state, it can cite "economic development" as the supposed "public use" that makes a taking of private property constitutional.

And of course tax revenues will be increased; the rich will pay high property taxes, and those businesses that cater to them will generate high sales taxes. That doesn't mean that there's any true public purpose here, though. Schools and hospitals have genuine public purposes; fancy gated communities typically don't.

"Just compensation" must also, under the Constitution, be paid when property is taken, but such compensation is rarely, in reality, just. And residents are especially vulnerable, post-Katrina: One wonders if they will receive compensation based on pre-flood values, or based on the devaluation of their property - even though it was caused by a natural disaster that was no fault of their own.

If current market value is the test for "just compensation," many Black families will doubtless lose their treasured homestead, only to gain a pittance in return.

Meanwhile, the numerous poor, Black renters who have played such a large part in making the city what it is - who built up its "cultural capital," and entered into the kind of social and business relationships that make up a city's life - will have nothing to show for their years there.

Unless the government makes it feasible for them to return, these renters will have, quite literally, lost everything - they will, in every way, be dispossessed.

Unless Black Residents Return, New Orleans Will Not Be the Same City

The city's fathers (and, in too few instances, its mothers) have a unique opportunity to recreate or rehabilitate New Orleans's old historic structures. But they may instead opt for expediency or financial gain, at the expense of destroying the city's rich cultural and historic heritage.

That heritage is largely an African-American heritage. And yet, the African-Americans who made and continued it are being dispersed across America, rather than being welcomed back to New Orleans.

It seems that a whiter, and duller New Orleans will result. Imagine a chrome, glass, and plastic sanitized New Orleans - one where conventioneers, Super Bowl attendees and mega-concert-goers enter a space of comfort and safety that might as well be Disneyland.

Imagine the city remolded to serve these values -- at the expense of everything that made New Orleans the great city it was. And now realize that, unless the government does something to welcome the dispossessed - especially, the Black, poor dispossessed - of New Orleans back, New Orleans will become just as you imagined it.

Then, if you are as horrified as I am, write to your Congressperson and tell them that getting New Orleans's people back, is just as important as getting its buildings rebuilt. And without Congress's help, it won't happen.


Barbara Bernier is a first generation Haitian-American. She is currently a professor of law at Florida A&M University College of Law in Orlando, Florida. She has published in many journals including William and Mary Journal of Women and the Law, Harvard BlackLetter Law Journal and the Washington and Lee Race and Ethnic Ancestry Law Journal. She teaches Constitutional Law, Contemporary Legal Theories and Property law. Professor Bernier was a Visiting Scholar at Harvard University School of Divinity where she studied law, religion and witchcraft.